Statement of claim for invalidation of the MFO loan agreement
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Medeu District Court of Almaty, Almaty, Nusupbekov St./Turgenskaya, 34
Phone: +7 727 2333 13 13 727-4260 @sud.kz
from: A.G.T IIN: .... Almaty region, Ili district, Komsomol village, ..., 71 +7 775 …
Respondent: Online Finance LLP BIN 131040003706 Republic of Kazakhstan,
050000, Almaty, 98 Panfilova St., 5th floor, Block 1 Letter "A"
STATEMENT OF CLAIM
on the recognition of the Loan Agreement as invalid
A loan agreement was concluded between A.G.T. (hereinafter referred to as the Plaintiff) and Online Finance LLP (hereinafter referred to as the Defendant) for No. 1884365 dated December 21, 2017. (Hereinafter referred to as the Loan Agreement) on the provision of a loan in accordance with which the Defendant provided the Plaintiff with a loan in the amount of 45,000 tenge, with payment of remuneration. Due to financial difficulties, the Plaintiff was forced to temporarily terminate her obligations under the contract. But despite the financial difficulties, she did not refuse to fulfill her obligations under the Loan Agreement. After some time, the Defendant turns to the Notary K.N.D. (Hereinafter referred to as the Notary) license No. 16011360 dated July 15, 2016 on compulsory debt collection from the Plaintiff under the above–mentioned loan agreement. Then the Notary issues an Executive Order to collect the amount owed.
Further, on the basis of the above-mentioned executive inscription, private bailiff M.T.T. in the period from November 26, 2019, to December 23, 2019, a total amount of 45,000 tenge was deducted from the Plaintiff's salary to repay the debt. Subsequently, the Executive Inscription of notary Koshekova N.D. was canceled by the Plaintiff and, accordingly, the Enforcement proceedings were terminated. But when on May 21, 2020, the Plaintiff logged into her personal account, indicated in the Loan Agreement as an official Internet resource http://moneyman.kz / the total amount of debt was 960,845 tenge, divided by the amount of:
Statement of claim for invalidation of the MFO loan agreement
the main debt is 45,000 tenge;
interest 0 tenge;
fine (fine) 915,845 (nine hundred fifteen thousand eight hundred forty-five) tenge;
this is confirmed by the attached screenshot taken on the same day. It is important to note that the Plaintiff initially takes an amount of 45,000 tenge under the loan agreement with the payment of remuneration, however, after some time, the Defendant issues a debt in the total amount of 960,845 tenge, despite the fact that the Plaintiff has already paid an amount of 45,000 tenge to repay the debt. Whereas clause 1, art.725-1 of the Civil Code of the Republic of Kazakhstan strictly stipulates that a loan agreement concluded with an individual borrower has the following features: 5) the annual effective interest rate under the loan agreement may not exceed one hundred percent, including in the event of a change in the loan repayment period; 6) the amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) payment of remuneration under the loan agreement may not exceed 0.5 percent of the amount of the outstanding obligation for every day of delay, but not more than ten percent of the loan amount per year; 7) all payments of the borrower under the loan agreement, including the amount of remuneration, penalties (fines, penalties), commissions and other payments provided for in the loan agreement, with the exception of the loan item, in aggregate may not exceed the amount of the loan issued for the entire period of the loan agreement; I would like to emphasize that the Defendant grossly violated the provisions of the above-mentioned article the fact that the amount of debt exceeds the amount of the loan issued under the loan agreement by several times.
In accordance with paragraph 2, Articles 725-1 of the Civil Code of the Republic of Kazakhstan, a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraph 1 of Article 725-1 of the Civil Code of the Republic of Kazakhstan is void. At the same time, the Parties do not provide for a claim procedure for considering the dispute. But despite this, the Plaintiff sent a pre-trial complaint to the email address indicated on the Defendant's official page on May 26, 2020. To date, the Plaintiff has not received a response to the pre-trial claim. Under the terms of the contested contract, the Defendant provided the Plaintiff with a service, as seen from the contract, of the following type: assessment of the likelihood of fulfilling loan obligations, extension of the loan, notification if payment is not possible on time. The fact is that the loan agreement actually took place between the Plaintiff and the Defendants. It follows from the terms of the service agreement that the Plaintiff is given a loan in cash on terms of urgency, payment and repayment, which allows us to conclude that in fact, the Defendant provided short-term loans to an individual. At the same time, the Defendant's activity in providing loans to citizens on the terms of payment, urgency and repayment is permanent. At the same time, the Defendant does not have the appropriate authorization document. Moreover, the provision of a loan with payment of remuneration refers to banking operations, this type of activity is subject to licensing. Thus, the Defendant actually carries out professional activities in the financial services market through online lending, but does not have an appropriate license and is not a proper subject of this activity. In addition, the Defendant is not a microfinance organization, does not have a license to conduct banking activities in the form of loans, the borrower of this organization is not a consumer of financial services.
According to paragraph 1 of Article 13, paragraph 5 of Article 14 of the Law "On Microfinance Organizations", the name of a microfinance organization must necessarily contain the words "microfinance organization". The register of microfinance organizations that have been registered is posted on the authorized body's Internet resource. In accordance with the requirements of Article 24 of the Law "On Microfinance Organizations", legal entities that are not registered as microfinance organizations are not entitled to carry out business activities to provide micro-loans. Further, it was established that the defendant provided a loan with payment of remuneration, however, the provision of a loan with payment of remuneration refers to banking operations, according to art.30 of the Law "On Banks and Banking Activities" and this type of activity is subject to licensing in accordance with the Rules for licensing banking operations carried out by organizations engaged in certain types of banking operations, approved by the Resolution of the Board Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations No. 168 dated June 25, 2007. However, the partnership does not have the appropriate license to carry out this type of activity.
Statement of claim for invalidation of the MFO loan agreement
By virtue of Article 4 of the Law of the Republic of Kazakhstan "On State Regulation, Control and Supervision of the Financial Market and Financial Organizations", persons who do not have an appropriate license issued in accordance with the legislation of the Republic of Kazakhstan are not allowed to carry out professional activities in the financial market. It follows from the contents of paragraph 2 of Article 6 of the Law "On Banks and Banking Activities in the Republic of Kazakhstan" that Banking operations carried out without a license from an authorized body or the National Bank of the Republic of Kazakhstan are invalid, with the exception of activities (operations) conducted by a state body, a National Postal Operator, organizations specified in paragraph 8 of Article 61-4 of this The Law, as well as the Development Bank of Kazakhstan within the limits of the powers established by this Law and other laws of the Republic of Kazakhstan. In accordance with paragraph 3 of Article 715, citizens and legal entities are prohibited from attracting money in the form of loans from citizens as business activities and such agreements are void. According to Article 157 of the Civil Code, a transaction is invalid on the grounds established by this Code or other legislative acts, by virtue of its recognition as such by a court (disputed transaction) or on grounds directly provided for by legislative acts, regardless of such recognition (void transaction). A transaction is considered to be disputed if its nullity is not provided for by legislative acts. In the event of a dispute over the nullity of the transaction, its invalidity shall be determined by the court. A transaction is recognized as invalid in case of violation of the requirements for the form, content and participants of the transaction, as well as for their freedom of expression on the grounds established by this Code or other legislative acts.
I ASK THE COURT:
To recognize the loan agreement for No. 1884365 dated December 21, 2017. concluded between A.G.T. and Online Finance LLP as invalid.
with respect ______/A.G.T.
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Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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